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(HERALD) Mutambara’s ouster above board — High Court

Mutambara’s ouster above board — High Court
Wednesday, 13 June 2012 15:05
Daniel Nemukuyu Senior Court Reporter

PROFESSOR Welshman Ncube is the legitimate leader of MDC, the High Court ruled yesterday. Justice Bharat Patel also ruled that the congress held by the party in Janu­ary 2011 was above board. The judge validated MDC’s election which gave Prof Ncube the mandate to lead the party as president.

The ruling follows an application by Jobert Mudzumwe, Morgan Changa-mire and other MDC mem­bers aligned to Prof Arthur Mutam­bara’s fac­tion seeking to nullify the congress and the election of the party’s national exec­utive.

The group — that was represented by Mr Obey Shava of Mbidzo, Muchade­hama and Makoni — had argued that the congress was con­ducted in violation of the party consti­tution.
It was argued that organisers of the congress failed to send notices to all provinces and districts as required by the party constitution.

The group also argued that the elec­tion process was flawed in the sense that the party national organising sec­retary chaired the election, instead of the national chairman.

They also contested the election nomination process.

However, Justice Patel threw out the application for lack of merit.

He ruled that the national organis­ing secretary was justified in chairing the election considering that the party chairman had deliberately absented himself.
Abandoning the congress because of the chairman’s deliberate absence would amount to promoting monop­oly in party leadership.

“It follows that the resolution autho­rising the national organising secre­tary to perform the functions of the national chairperson at the congress, including the conduct of elections under Article 6.13.3 was per­fectly competent under the aegis of Article 15.1.

“In the instant case, having deliber­ately absented himself from the con­gress the first applicant (Mudzumwe) cannot rely on his absence to argue that all the proceedings at the congress were a nullity because he was not pres­ent.

“To allow him to do so would enable him to benefit from his own deliberate abstention to the extreme prejudice of the entire MDC party membership.

“It would allow party leaders to cir­cumvent and frustrate the electoral process and remain in office indefi­nitely through the simple stratagem of non-attendance,” he ruled.

Justice Patel shot down the challenge on proper notification of provinces and districts.

He ruled that the party members complied with the constitutional requirement.
“Over 4 000 delegates representing all the provinces and districts actually attended the congress.

“Those who did not attend, including the applicants, deliberately chose to boycott. In any event, virtually all the applicants were members of the national council and were present at the meeting where the dates of the congress were fixed.

“It follows in my view that the provision was not violated in any way and was duly complied with,” Justice Patel ruled.

The election process, the judge ruled, was above board and in line with the party constitution.

“In short, what transpired at the congress in casu was an electoral process. I am therefore inclined to con­clude that the proceedings under consideration, notwithstanding the absence of any opposition to the can­didates nominated, constituted elections in the formal sense, requiring the active involvement of a desig­nated official to preside over the conduct of those elections,” the court ruled.

Mr Changamire said the group intended to appeal against the judgment.

“We are not happy with the judgment. The judgment left out a lot of issues. We are taking it up to the Supreme Court. We will soon file an appeal,” he said.

In December last year, Bulawayo High Court judge Justice Lawrence Kamocha granted an application by Prof Ncube to interdict Prof Mutambara from acting as both party president and principal to the Global Political Agreement.

Justice Kamocha ruled that basing on the final order sought, Prof Mutambara was no longer MDC pres­ident.

He said the party was justified in launching the application restraining Pro Mutambara from persisting with his behaviour.

The judge added that the outcome of the party congress remains valid until and unless it was set aside by a court of law.

However, the matter is still pending in the Supreme Court after Prof Mutambara appealed against the ruling.

Labels: ARTHUR MUTAMBARA, MDC, MDC FACTIONS, MDC-M, WELSHMAN NCUBE

posted by MrK @ 4:09 PM